Perverting the Course of Justice, Again. Can We Trust Juries?

Yesterday a fresh trial began in the case of Vicky Pryce, the former wife of Chris Huhne alleged to have accepted speeding points on his behalf. For the original article on the trial and the relevant law, see here:

http://lawscapeuk.blogspot.co.uk/2013/02/perverting-course-of-justice-and.html

Ms Pryce’s original trial was abandoned last Wednesday after the jury was discharged following their inability to reach a verdict. The judge, Mr Justice Sweeney, had received a note from the jury saying it was ‘highly unlikely’ they would be able to reach a verdict. The jury had earlier been directed that the judge would accept a majority verdict made by at least 10 of out of the 12 jurors.

Considerable concern was expressed at some of the questions asked by the jury. The jury asked a list of 10 questions, which included a request for further definition of what is meant by being convinced ‘beyond reasonable doubt’ of the defendant’s guilt and whether they could make their decision based on reasons not presented in court or supported by the evidence. The judge said that some of these questions showed a ‘fundamental deficit in understanding’ by the jury of its role and that he had never come across anything like it in 30 years of criminal trials.

Now it is not rare or exceptional for juries to ask questions. But it is rare for a judge to be critical of a jury. And it is completely exceptional for a jury to so fatally misunderstand its role. After all there can be few of us that think we can reach a verdict in a criminal trial based on reasons not presented in evidence. If we could what would be the point of having evidence?

In the wake of this story there has been much discussion about whether we can still trust the jury system. Some have suggested that jurors should meet have to meet a minimum educational standard. So should we be concerned about the jury system? Does it need to be modified extensively?

For me at least the answer is a resounding ‘no’. This was an extremely rare case. Juries often deal with considerably more complex cases without difficulty. No injustice was caused in this case; as soon as the issue with the jury was clear the trial was abandoned and a retrial ordered. Moreover if the jury had found Ms Pryce guilty and there was concern about the conviction then there could have been an appeal to the Court of Appeal, which would have overturned the conviction if it was satisfied that it was ‘unsafe’. The system provides protection from miscarriages of justice. Furthermore, if we did decide, for example, to impose an educational requirement on jurors what requirement would we choose? And who would we entrust to decide that requirement? Perhaps the only thing we need to be sure of is that jurors must have a good command of English because of the complexity of the language sometimes used in trials. Maybe, with our increasingly diverse society, this will have to be seriously considered in the future.

The jury system has worked for hundreds of years and we are rightly proud of our right to be tried fairly by a jury. I am sure we will be proud of it for many years to come. In the meantime, we can await the new jury’s verdict in Ms Pryce’s case.

Do you think we should retain the jury system? Does it need modifying? 

Lord Hanningfield Unlawfully Arrested by Essex Police

Last Friday the High Court held that Essex Police unlawfully arrested and detained Lord Hanningfield. It also held that they unlawfully searched his home.

Lord Hanningfield, 72, was arrested as part of an investigation into whether he had fraudulently abused his position of trust in relation to the expenses he claimed while leader of Essex County Council.

On the 14 September 2011, at 6.45 a.m., five officers arrived in unmarked police vehicles, woke the peer, arrested him and searched his bungalow without ever having obtained a warrant. He was then detained at Braintree Police Station until later that morning. Lord Hanningfield had only been released from prison a few days before, on 9 September 2011, having been imprisoned on 1 July 2011 following his conviction for false accounting in relation to his House of Lords expenses.

Lord Hanningfield argued that the arrest, search and detention were unlawful. As he was arrested without a warrant the Police and Criminal Evidence Act 1984 (section 24) says that the question of whether the arrest was lawful or not turned on if it was ‘necessary’ to arrest him to ‘allow the prompt and effective investigation’ of an offence or his conduct. It was agreed that if the arrest was unlawful then the search and detention would be unlawful also.

So what exactly does ‘necessary’ mean? Mr Justice Eady, the judge, explained that previous cases tell us that ‘necessary’ in this context means that we consider two things:

(a) did the officer making the arrest believe himself it was necessary to make the arrest, based on what he knew (a subjective question); and

(b) would a reasonable person, who knew the same facts as the officer, also believe that it was necessary to make the arrest? (an objective question)

Having defined ‘necessary’ the judge went on to consider the arguments on both sides. The police argued that it was necessary to make the arrest because Lord Hanningfield might have tried to conceal or destroy evidence relating to his expenses now that he had been released from prison. They also argued that he might seek to collude with other individuals who were suspects (none of whom were ever arrested). Finally they suggested he might fly into a temper when challenged on his council expenses. On the other hand, Lord Hanningfield argued that he had always been cooperative and would have been more than happy to attend a voluntary interview or could have been interviewed in prison. He further argued that he had known about the police investigation back in May 2011 and could therefore have destroyed or concealed evidence or colluded long before his imprisonment.

The judge agreed with Lord Hanningfield. He held that although the arresting officer believed it was necessary to make the arrest no reasonable person would conclude it was necessary to make the arrest at that time. The arrest at that time would not have had any impact on a prompt and effective investigation. ‘There were simply no solid grounds to suppose that [Lord Hanningfield] would suddenly start to hide or destroy evidence, or that he would make inappropriate contacts’. There was no reason not to follow the process to obtain a warrant. As the arrest was not necessary it was therefore unlawful. Since the arrest was unlawful it was held that the search and detention were also unlawful.

The sum of £3,500 was awarded to Lord Hanningfield, who has promised to donate the money to charity. Essex Police have said they are considering whether to appeal.

The judgment can be read here: http://www.bailii.org/ew/cases/EWHC/QB/2013/243.html

Discussion

I certainly hope that Essex Police do not waste any further taxpayer’s money appealing this decision. It is clear to me that it was not necessary to arrest Lord Hanningfield at the moment he was. There was ample opportunity to interview him in prison. Alternatively, a voluntary interview could have been requested. What are your thoughts? Was an arrest necessary at that time?

GCSEs: Moving the Goal Posts

Today the High Court has ruled that grade boundary changes to English GCSEs in 2012 were not unlawful.

Grade boundaries were altered between the January and June 2012 assessments, making it more difficult to achieve higher grades in June compared with January. The consequence was that many students who expected to receive a C grade only received a D grade. An alliance of local authorities, school and pupils challenged the decision to toughen the boundaries. The boundaries were altered by the examination boards, a decision that was not challenged by the examinations regulator, Ofqual. Those that challenged the decision, by way of judicial review, argued that students being graded in June 2012 ought to have been treated consistently with the students graded in January, who were treated more leniently.

The claimants’ strongest arguments were as follows:

a) it was ‘conspicuously unfair’ in a way amounting to an abuse of power to treat the students being   examined in June 2012 less favourably than those examined in January 2012; 

b) the exam boards and Ofqual failed to follow a ‘legitimate expectation’ that the grading standards would remain effectively the same; and  

c) it was ‘irrational’ not to treat the January and June candidates in the same way and instead adopt tougher standards in June. (In law ‘irrationality’ basically means acting in a way which no other reasonable person would do.)

Dealing with argument b) first, the judges concluded that at no point were schools and students promised that the boundaries would not change. They could not therefore legitimately expect them not to change. That argument therefore failed.

The judges treated arguments a) and c) as the same argument. They said that the examination boards and Ofqual only changed the boundaries because it was determined statistically that the January boundaries had been too lenient. When they realised that the boundaries had to be toughened then any action they took would cause unfairness to one group or another. If they marked the June students according to the more lenient January standard then students in previous years would have been treated unfairly as they had been marked more harshly than the lenient January standard. In addition, students of the future would be treated unfairly as they would be graded according to the more difficult standard in the future and not the lenient January 2012 one. Moreover, to mark the June 2012 students at the lower standard would artificially inflate their ability. Alternatively, if they acted in the way that they did, by making the standard tougher, then it would be unfair on the June 2012 students. Given that there would be unfairness either way the judges said it was perfectly acceptable for the exam boards and Ofqual to opt to protect the integrity of the examinations by changing the boundaries when they realised that it was necessary. For those reasons the judges said that the decisions made were not unlawful.

The judges said that the unfairness was ultimately caused by the modular nature of the exams, which required assessment at various different points, rather than only at the end of a course. If there was only one assessment then there would be no issue of unfair grade boundary changes. So while the system produced unfairness, there was no unlawful action by the exam boards or Ofqual.

Discussion

While this decision seems right in law I cannot help but feel uneasy about it. Sitting exams is a recent experience for me and I clearly remember being directed on what the grade boundaries were and being told I could rely on those directions. I suspect that the June 2012 students did the same and expected they were being told the right information. To then discover otherwise must truly have been devastating. While the examination boards and Ofqual may not have acted unlawfully the reality is there will have been many students who were told what the grade boundaries were and who then worked to them, only to later discover everything they were told was inaccurate. To me at least that is manifestly and conspicuously unfair.

What are your thoughts?

The judgment can be read here: http://www.bailii.org/ew/cases/EWHC/Admin/2013/211.html

Jobseeker's Allowance and Slavery

Yesterday the Court of Appeal ruled that the government’s back to work schemes are unlawful.

The court held that it was unlawful to force Cait Reilly, a 24-year-old geology graduate, to work unpaid in Poundland for two weeks as part of the ‘sector-based work academy’ programme. It also held that it was unlawful to force Jamie Wilson, 40, to work unpaid for six months as part of the ‘Community Action Programme’. Both individuals had been told that failure to take part in the programmes would lead to their benefit being stopped.

Despite all the commotion regarding this case, with suggestions of slavery and forced labour, the reality is that the decision was made on a very narrow point. Indeed the court was quite clear that, generally, those claiming Jobseeker’s Allowance ‘should be required to participate in arrangements which may improve their prospects of obtaining remunerative employment’. It said that such arrangements would not breach Article 4 of the European Convention on Human Rights, which prohibits slavery and forced labour.

So if forcing jobseekers to take part in certain schemes is not slavery what exactly made it unlawful in this case? Simply put, the schemes were not set out in the way required by law, so they were unlawful. The schemes were apparently operated under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011. The Jobseeker’s Act 1995 (section 17A) provides that regulations can make rules for requiring people to participate in back to work schemes of a ‘prescribed description’. The 2011 Regulations simply stated that there was Employment, Skills and Enterprise Scheme and that it was a scheme under the 1995 Act. The regulations did not give any other description of the scheme nor the schemes that Miss Reilly and Mr Wilson were told to participate in. As the schemes were not properly described they were not of a ‘prescribed description’ as required by the 1995 Act. They were therefore unlawful and were quashed (invalidated) by the court.

The government intends to appeal the decision to the Supreme Court. In the meantime it has laid new, more precise, regulations before Parliament so that the schemes can continue.

The judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2013/66.html

Perverting the Course of Justice and Marital Coercion

This week former cabinet minister, Chris Huhne, has pleaded guilty to perverting the course of justice by allowing his then wife to take speeding penalty points for him in 2003.

Huhne, who has now also resigned as an MP, accepted that he wanted to avoid the penalty points because they would lead to him losing his driving licence when added to the penalty points he already had. He now faces a possible prison sentence.

Meanwhile, his former wife, Vicky Pryce, continues to deny that she perverted the course of justice. It is alleged that she informed the police she was driving the vehicle when it was caught speeding so that Huhne avoided prosecution.

The court heard that the speeding offence only became public knowledge in 2011 after Huhne told Pryce about an extra-marital affair. The court was told that Pryce wanted revenge for the affair and provided the story to the Sunday Times to ‘nail him’.

Pryce will now use the marital coercion defence. She will have to prove that she was pressured by Huhne into accepting the speeding penalty points on his behalf. The trial continues.

Marital Coercion

The defence of marital coercion is a curious one, based on an old legal presumption that any crime committed by a wife in the presence of their husband was under coercion. The presumption was abolished by section 47 of the Criminal Justice Act 1925, but a defence remained. In any case apart from treason and murder it is a good defence for a wife to say an offence was committed in the presence of their husband under their coercion. The wife has to show on the balance of probabilities (that it is more likely that not) that their will was overcome by the coercion of the husband to commit the offence.

It is worth asking if we think such a defence is justified in the 21^st century. After all we are all protected by defence of duress if we commit an offence (not murder, attempted murder or treason) because of a threat of serious harm. The Law Commission, the body that reviews the law, has called for the abolition of the defence, saying it is not suited to modern conditions. I certainly agree.